3+9=Costs (May 2023 Edition)

Welcome to the 7th Edition of 39 Essex Chambers’ Costs Newsletter. We start with another celebration for the team as we congratulate Nicola Greaney KC on taking Silk – very well done indeed!

I’m not sure if celebration is the word when it comes to developments in the spheres of QOCS and fixed costs, but we do have new rules in relation to QOCS and, as to fixed costs, the horizon is clearing as we now have draft explanatory notes and draft rules for what lies ahead in October. (The rules for Part 36 will also be revised in October which at first sight reflect the changes in QOCS and Fixed Costs provisions elsewhere.)

In this issue, we take you through some recent case law on testing the bounds of the QOCS regime as we have known it (pre-April 2023): First, the High Court case of Chappell v Mrozek which considered whether an order reflecting the agreement between the parties as to the liability for costs following the late acceptance of a Part 36 offer was an “order” enabling enforcement (set-off) pursuant to the QOCS rules.

Second, the Court of Appeal case of University Hospitals of Derby & Burton NHS Foundation Trust v Harrison appears to have sealed the fate of arguments about the applicability of QOCS in relation to a situation where the court was obliged to determine whether permission should be given to accept a Part 36 offer made by the Defendant which included deductible benefits.

Third, back in the High Court, the case of Pathan v Commissioner of Police of the Metropolis considered the application of QOCS to a mixed claim, in circumstances where the personal injury claim was added by amendment late in the progress of the proceedings.

We then round up these cases and some others in an overview leading to the current position reflected in the new rules effective from 6 April 2023, for claims issued on or after that date. Old, new and in the meantime, transitional!

Aside from QOCS, we review a High Court appeal on the use of Guideline Hourly Rates at detailed assessment and the escalation of London 1 as a more useful starting point in what would otherwise have been a London 2 case: Harlow District Council v Powerrapid Limited.

We look at Candey Limited v Crumpler & Or, a case that ran to the Supreme Court which considered whether the residual equitable lien of a solicitor (ranking them first in relation to the discharge of their fees out of the litigation proceeds) was surrendered in circumstances where other measures of security had been introduced after the initial instruction.

To close the show, we leave you with a summary review of the upcoming rule changes in relation to Tracks and Fixed Costs expected in October 2023.

Happy reading!

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